The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on February 23, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on February 23, 2006.

Issue

Whether or not the worker is entitled to wage loss benefits beyond April 19, 2002.

Decision

That the worker is entitled to wage loss benefits from April 19, 2002 to April 30, 2002, less any days worked.

Decision: Unanimous

Background

On March 26, 2002, the worker filed a claim with the Workers Compensation Board (WCB) for a lower back injury that occurred during the course of his employment on March 22, 2002. The worker was rolling up dollies on a loaded trailer and he pulled on the crank to fold the handle to put it away into its storage hook. It was icy where he was standing and the next thing he knew his foot slipped while still with the crank handle in his hand and he twisted his back.

On the same day of injury, the worker was transported to a local hospital and gave an accident description of "cranking a winch - lost balance on ice - caught himself - instant pain - left sided…".

A Chiropractor's First Report showed that the worker was treated on March 23, 2002 and he described the accident as follows, "slip from truck onto ice & gravel". The diagnosis rendered was severe sacroiliac strain/sprain/right AC [acromioclavicular] joint.

A Doctor's First Report showed that the worker was treated on March 25, 2002 and he described the accident to his doctor as follows, "putting away dolly crank, slipped on ice - one leg (sic) one way the other another - twisted low back." The diagnosis rendered was an acute low back strain and possible disc herniation.

A Doctor's Progress Report dated April 8, 2002 indicated a change in diagnosis to low back strain and possibly a right shoulder strain/dislocation. In a subsequent progress report the treating physician indicated that the worker's low back pain was gone and that range of motion in the right shoulder was decreased in abduction and flexion extension and that he was tender over the AC joint.

On April 10, 2002, a WCB adjudicator spoke with the treating physician who indicated that the worker was seen for a previous WCB shoulder injury that was not related to this injury.

The claim for compensation for a low back injury was accepted by initial adjudication and chiropractic treatment costs were authorized for 10 weeks. The worker was paid wage loss benefits retroactive to March 23, 2002. The worker returned to his regular duties on April 11, 2002.

On April 15, 2002, the worker advised a WCB case management representative (CMR) that his return to work did not go well on April 11, 2002. He had to tarp a flat deck load and the first strap he threw over made his right shoulder give out. His chiropractor advised him to remain off work for 5 days. The CMR noted that the area of injury for the March 22 claim was "lower back" and not the right shoulder. The worker stated that his shoulder was involved in the accident but he didn't think it was too bad at first but it got worse to the point where he had a hard time lifting his right arm up. He stated that his previous adjudicator was aware of his right shoulder injury.

In a telephone conversation on April 16, 2002, the CMR advised the worker that the WCB would not accept responsibility for his right shoulder difficulties as early documentation including the employer's report, his own worker's report and the hospital emergency report did not mention a right shoulder injury. The worker advised the CMR that he did not notice his right shoulder pain until a couple of days after the accident because of the back pain he was experiencing. He stated that he had been having right shoulder problems even before he returned to work. The CMR advised the worker that she was aware of him having problems with his right shoulder since last year and that the WCB did not accept responsibility for his right shoulder on the prior claim.

A review of prior claims revealed that the worker suffered a compensable left shoulder injury from a motor vehicle accident (MVA) in February 2001, for which he received benefits. On April 11, 2001, the worker contacted the WCB regarding right shoulder symptoms that he related to his February 2001 claim. He reported that the right shoulder symptoms first appeared driving a truck on a city run the day before, and felt it was an overuse injury caused by his inability to use his left arm effectively. On June 26, 2001, an MRI was performed on the worker's right shoulder, which noted a light hypertrophy involving the inferior aspect of the acromioclavicular (AC) joint, with a type II curved acromion. The MRI noted a mild impingement on the supraspinous muscle. On July 25, 2001, the WCB denied responsibility for the worker's right shoulder condition, noting the passage of time from the original workplace accident until the right shoulder symptoms first appeared. The worker's treating orthopaedic surgeon later interpreted the worker's condition as "bilateral rotator cuff disease" in his letter of July 26, 2001.

After a review of the information on both files, the worker was advised in a decision dated April 17, 2002, that in the opinion of Rehabilitation and Compensation Services, he had recovered from his workplace injury, and that his right shoulder condition was not related to his compensable injury of March 22, 2002. Therefore, no further wage loss benefits would be paid beyond April 10, 2002.

On April 19, 2002, the treating chiropractor advised the WCB that injured workers come to his office and do not realize there are residual problems/injuries that do not show up until after the greater pain has subsided. He stated that in this case, the worker's right shoulder could have been injured during the March 22 workplace accident. He stated that the worker's sacroiliac joint had improved 90% but he was not fully recovered and that the right shoulder was better. He indicated that the worker would try a return to work over the next weekend.

Following consultation with a WCB chiropractic advisor on April 22, 2002, the WCB accepted responsibility for the worker's right shoulder difficulties, and wage loss benefits were paid to the worker from April 15 to April 19, 2002 inclusive.

On April 29, 2002, the worker advised the WCB that he was being taken off work for three weeks and that his doctor was sending him for a CT scan, because of ongoing right shoulder difficulties. He indicated that he was being sent to an orthopaedic specialist for his right shoulder as he couldn't lay on it and felt that his work may have torn a ligament in his shoulder.

In early May 2002, the worker was involved in a motor vehicle accident (MVA). This accident led to significant increases in low back and right shoulder pain. The worker received MPI benefits until October 2002.

On May 16, 2002, the treating physician noted that the worker was undergoing recurrent problems with his back and shoulder, and commented that the worker had an old back injury and recurrent shoulder injuries dating back to an MVA in approximately February 2001.

A CT scan of the lumbar spine was performed on May 15, 2002 and no significant abnormality was identified.

Following a review of the additional medical information dated May 16, 2002 and the CT scan results, the worker was advised on June 3, 2002 that his current difficulties with his back and shoulder were not related to his March 2002 work place injury. As the worker was seeing a specialist for his shoulder condition in August 2002, the worker was advised that the WCB would review the findings to see if the findings changed its position on his file.

On October 31, 2002, a worker advisor provided the WCB with new medical information from the worker's treating orthopaedic specialist dated September 9, 2002, October 7, 2002 and October 28, 2002. The worker advisor indicated that the specialist supported that the worker's current right shoulder diagnosis being AC joint and rotator cuff tendinitis was an ongoing disability resulting from his compensable accident of March 22, 2002 from which he had not recovered. The worker advisor therefore felt that it was appropriate to reinstate the worker's benefits as of April 20, 2002 and that the WCB should accept responsibility for an arthroscopy procedure scheduled for December 13, 2002.

On November 26, 2002, the case manager determined that the new medical evidence failed to relate the worker's ongoing symptoms to his March 22, 2002 workplace injury and that the June 3, 2002 decision would remain unchanged.

In a submission dated April 23, 2003, the worker advisor submitted a new medical report from the treating orthopaedic specialist dated April 14, 2003 which supported the position that the worker's right shoulder condition was related to his compensable accidents of March 22, 2002 and April 11, 2002.

On May 21, 2003, the case manager determined that the new medical information did not change the fact that the worker experienced right shoulder problems prior to his March 22, 2002 workplace injury. It remained the opinion of Rehabilitation and Compensation Services that the work injury to the right shoulder on March 22, 2002 was an aggravation of a pre-existing condition.

On December 30, 2003, the worker told his case manager that he was experiencing lower back difficulties which he related to his 2002 and 2001 compensation claims. The worker indicated that his new job involved working in a body shop and that his back worsened to the point that he had to go to the hospital on December 28, 2003.

In a submission dated January 16, 2004, the worker advisor appealed the WCB's decisions of November 26, 2002 and May 21, 2003. She outlined her position that the worker's ongoing right shoulder difficulties were the result of the compensable workplace accident and that the worker did not have a pre-existing condition. In support of her position, the worker advisor made reference to reports on file from the worker's treating chiropractor, orthopaedic specialist and treating physician.

On January 20, 2004, the case manager indicated to the worker advisor that the 2001 WCB claim did not accept the right shoulder condition as compensable, and thus it would be a pre-existing non-compensable condition when looking at the 2002 claim. However, it was not clear whether the mechanism of injury from the 2002 injury would result in continued right shoulder difficulties, in light of the May 1, 2002 MVA. To determine these issues, the case manager requested the claim file from MPI.

On May 6, 2004, a WCB orthopaedic specialist reviewed the file information and responded to questions that were posed by the case manager dated April 16, 2004.

In a May 20, 2004 decision, it was determined that the worker had recovered from the effects of his 2001 and 2002 compensable injuries and that the worker's ongoing difficulties were related to the noted pre-existing conditions. This decision was reached based on the following findings:

• The information contained in the worker's 2001 file which showed that the worker's right shoulder would not be compensable due to over compensating with his right arm, or from the actual accident;
  
  
• The worker did have evidence of pre-existing conditions;
  
  
• The worker suffered a lower back strain from the March 22, 2002 workplace accident;
  
  
• The March 22, 2002 workplace accident resulted in an aggravation of a pre-existing condition of osteoarthritis of the right AC joint and did not result in an enhancement of a pre-existing condition;
  
  
• The December 13, 2002 surgery, according to the WCB specialist's opinion, did not arise out of either of the two claims. It was related to the pre-existing conditions.

On October 7, 2004, the worker advisor appealed the WCB's decision of April 17, 2002 and subsequent decisions to Review Office.

On January 12, 2005, Review Office received a submission from an advocate, acting on the employer's behalf. On January 20, 2005, the worker advisor provided a rebuttal to the employer's submission.

In a decision dated February 11, 2005, Review Office confirmed that the worker was not entitled to wage loss benefits beyond April 19, 2002. In the opinion of Review Office, the accident of March 22, 2002 caused a minor aggravation of the worker's prior non-compensable right shoulder complaints. The evidence did not support that any new injury occurred on April 11, 2002. Review Office concluded that the worker had been adequately compensated for the effects on his right shoulder from his March 22, 2002 workplace accident and accordingly his appeal was denied. On April 28, 2005, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

As noted in the background, the worker in this case first suffered a low back and right shoulder injury from two workplace incidents on March 22 and April 11, 2002, which were ultimately adjudicated by the WCB under one claim. At the outset, the WCB only accepted the low back condition, and did not accept that the right shoulder condition was a compensable condition. Benefits were originally paid until April 11, 2002. The WCB later accepted the right shoulder injury as well, on the basis that there had been two temporary aggravations of a pre-existing injury, on March 22 and April 11, 2002, and provided additional wage loss benefits to April 19, 2002, when he again returned to work. The worker subsequently went off work on April 29, 2002 because of shoulder pain, and was not working for various periods of time in following years. He has asked WCB to provide him with wage loss benefits beyond April 19, 2002. He has been denied these benefits at the adjudicative and Review Office levels, and is appealing those decisions to this panel.

At the hearing, the worker and worker representative clarified that they were seeking wage loss benefits from April 20, 2002 until April 30, 2002 (being the day prior to the worker's non-compensable MVA), then partial wages from when his MPI claim ended in October 2002, until his right shoulder surgery in December 2002. The worker also asked for wage loss benefits for the recovery period following the surgery. The panel noted at the hearing that it is unable to deal with this last period, as that period of wage loss was incidental to the right shoulder surgery that had not been accepted by the WCB. This is a medical aid issue that is not before the panel. This issue could only be considered by the WCB in the event that the panel finds that the worker's shoulder condition was related to the compensable injury, at the time of the surgery.

At the hearing, the worker's representative and employer representative also confirmed that the worker was only appealing the ongoing relationship of his right shoulder symptoms to the 2002 claim, and not to the 2001 claim.

For the worker's claim to be successful, we would have to find that his right shoulder problems beyond April 19, 2002 are causally related to his workplace accidents from a medical point of view, and that the worker suffered a compensable loss of earnings beyond that date, as a result of those shoulder problems. After careful consideration of all the evidence on file and presented at the hearing, the panel has found that the worker is entitled to a limited extension of wage loss benefits, from April 20 - 30, 2002, less any days worked in that period. The panel further finds that any ongoing shoulder problems beyond the MPI claim are not causally related to the workplace incidents in March and April 2002, and accordingly, there is no entitlement to wage loss benefits for later periods. The panel notes that the effect of this finding will also be to remove any WCB responsibility for subsequent shoulder surgery.

Analysis

A chronological review of the worker's history of right shoulder problems suggests that the worker has had ongoing right shoulder symptoms since 2001, well before the March 22, 2002 claim which deals with two workplace incidents on March 22 and April 11, 2002.

The panel notes in particular the worker's complaints of right shoulder difficulties starting in April 2001, and his seeking of medical care for that condition. These right shoulder symptoms arose at a time when the worker was not regularly employed. An MRI dated June 26, 2001 noted a mild impingement of the supraspinatous muscle, and was later interpreted by his treating orthopaedic specialist on July 26, 2001 as bilateral rotator cuff disease. This diagnosis was later confirmed in a December 13, 2002 operative report on the right shoulder, which notes a post-operative diagnosis of rotator cuff tendonitis and AC joint osteoarthritis. The panel finds, on a balance of probabilities, that this medical condition was well-established in the worker's right shoulder prior to the 2002 workplace incidents and was permanent in nature. As such, the worker has a non-compensable pre-existing right shoulder condition that had been symptomatic prior to the workplace incidents in March and April 2002.

The panel has also reviewed the mechanics of injury for the March 22, 2002 incident, and notes the worker's evidence that he did not experience pain in the right shoulder until two days following the slip and fall event, and was later able to return to regular duties. The second incident on April 11, 2002 notes an increase in symptoms after the worker threw a strap over a flat bed load, while tarping a load. The panel notes that these incidents were both "minor" in nature, in that no acute injury was diagnosed other than the flare-up of the pre-existing shoulder conditions. Based on these observations, the panel finds that the worker's pre-existing right shoulder condition was temporarily aggravated twice, at two workplace incidents.

These findings are consistent with the analysis provided by a WCB orthopaedic specialist in his written opinion dated May 6, 2004. The panel further notes that the December 2002 surgery found the same medical conditions as those noted in the 2001 MRI, prior to the accident. This suggests that there was no enhancement of the pre-existing medical conditions from the workplace incidents.

Dealing with the extent of the aggravations, the panel notes that the worker had a non-compensable MVA on May 1, 2002, as a result of which he suffered low back and right shoulder difficulties. The evidence shows that the worker's right shoulder symptoms increased significantly after May 1, 2002, and were continuous from that time forward, past the termination of his MPI benefits in October 2002, and until his surgery in December 2002. The panel notes that the worker had a history of short term aggravations of his pre-existing shoulder condition prior to the MVA, and finds that the same would have occurred after the April 11, 2002 incident. The panel finds that the May 2001 MVA was a significant intervening event that was the primary cause of the continuing difficulties that the worker had with his right shoulder. But for the MVA, the April 11, 2002 aggravation would have resolved within the three week time frame suggested by his treating chiropractor on April 29, 2002, given the minor nature of the workplace incidents. In this regard, the panel also accepts the comments by the WCB orthopaedic consultant who notes that any aggravation would have ceased to exist within a few weeks.

Accordingly, the panel finds that that the worker is entitled to a limited period of wage loss benefits from April 20 to 30, 2002, less any days that he worked in that period. The worker's appeal is partially accepted.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of April, 2006